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This is universally considered the finest of Mr. Erskine's speeches, "whether we regard the wonderful skill with which the argument is conducted-the soundness of the principles laid down, and their happy application to the case-the exquisite fancy with which they are embellished and illustrated-or the powerful and touching language in which they are conveyed. It is justly regarded by all English law. yers as a consummate specimen of the art of addressing a jury—as a standard, a sort of precedent for treating cases of libel, by keeping which in his eye a man may hope to succeed in special pleading his client's case within its principle, who is destitute of the talent required even to comprehend the other and higher merits of his original. By these merits it is recommended to lovers of pure diction-of copious and animated description-of lively, picturesque, and fanciful illustration-of all that constitutes, if we may so speak, the poetry of eloquence."-Edinburgh Review, vol. xvi., p. 109.

Extraordinary

posed in the

defendaut.

SPEECH, &c.

GENTLEMEN OF THE JURY,-Mr. Stockdale, | General, in concession to my propositions, and who is brought as a criminal before confirmed by the higher authority of the court, confidence re you for the publication of this book, namely, that every information or indictment speaker by the has, by employing me as his advocate, must contain such a description of the crime that, reposed what must appear to many First, the defendant may know what crime it an extraordinary degree of confidence; since, is which he is called upon to answer. although he well knows that I am personally Secondly, the jury may appear to be warrantconnected in friendship with most of those whose ed in their conclusion of guilty or not guilty. conduct and opinions are principally arraigned by its author, he nevertheless commits to my hands his defense and justification.

the impartiality

bar.

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And, thirdly, the court may see such a precise and definite transgression upon the record, as to be able to apply the punishment which judicial discretion may dictate, or which positive

It was admitted also to follow as a mere corollary from these propositions, that where an information charges a writing to be composed or published of and concerning the Commons of Great Britain, with an intent to bring that body into scandal and disgrace with the public, the author can not be brought within the scope of such a charge, unless the jury, on examination and comparison of the whole matter written or published, shall be satisfied that the particular passages charged as criminal, when explained by the context, and considered as part of one entire work, were meant and intended by the author to vilify the House of Commons as a BODY, and were written of and concerning them IN PARLIAMENT ASSEMBLED.

These principles being settled, we are now to see what the present information is.

From a trust apparently so delicate and sinThis created by gular, vanity is but too apt to whis-law may inflict. of the English per an application to some fancied merit of one's own; but it is proper, for the honor of the English bar, that the world should know that such things happen to all of us daily, and of course; and that the defendant, without any knowledge of me, or any confidence that was personal, was only not afraid to follow up an accidental retainer, from the knowledge he has of the general character of the profession. Happy, indeed, is it for this country that, whatever interested divisions may characterize other places, of which I may have occasion to speak to-day, however the counsels of the highest departments of the state may be occasionally distracted by personal considerations, they never enter these walls to disturb the administration of justice. Whatever may be our public principles, or the private habits of our lives, they never cast even a shade across the path of our What impartial professional duties. If this be the characteristic even of the bar of an of the court and English court of justice, what sacred impartiality may not every man expect from its jurors and its bench? As, from the indulgence which the court was yesterday pleased to give to my inciples applica disposition, this information was not proceeded on when you were attending to try it, it is probable you were not altogether inattentive to what passed at the trial of the other indictment, prosecuted also by the House of Commons. Without, therefore, a restatement of the same principles, and a similar quotation of authorities to support them, I need only remind you of the law applicable to this subject, as it was then admitted by the Attorney Mr. Erskine was not only a great admirer of Mr. Burke, but he was in the constant habit of referring to his productions in terms of the highest ad

ity, then, may we not expect

jury?

Admitted prin

ble to the case.

miration.

It charges that the defendant-"unlawfully, wickedly, and maliciously devising, con- The crime triving, and intending to asperse, scan- charged. dalize, and vilify the Commons of Great Britain in Parliament assembled; and most wickedly and audaciously to represent their proceedings as corrupt and unjust, and to make it believed and thought as if the Commons of Great Britain in Parliament assembled were a most wicked, tyrannical, base, and corrupt set of persons, and to bring them into disgrace with the publicthe defendant published What? Not those latter ends of sentences which the Attorney General has read from his brief, as if they had followed one another in order in this book. Not those scraps and tails of passages which are patched together upon this record, and pronounced in one breath, as if they existed without intermediate matter in the same page, and without context any where. No! This is not the accusation, even mutilated as it is; for the information charges that, with intention to vilify

the House of Commons, the defendant published | first give you the publication as it is charged the whole book, describing it on the record by upon the record, and presented by the Attorney its title: "A Review of the Principal Charges General in opening the case for the Crown; and against Warren Hastings, Esq., late Governor I will then, by reading the interjacent matter, General of Bengal:" in which, among other which is studiously kept out of view, convince things, the matter particularly selected is to be you of its true interpretation. found.2

Question for the jury to decide.

The information, beginning with the first page of the book, charges as a libel upon the House of Commons the following sentence; "The House of Commons has now given its final decision with regard to the merits and demerits of Mr. Hastings. The Grand Inquest of England have delivered their charges, and preferred their impeachment; their allegations are referred to proof; and from the appeal to the collective wisdom and justice of the nation in the supreme tribunal of the kingdom, the question comes to be determined whether Mr. Hastings be guilty or not guilty?"

It is but fair, however, to admit that this first sentence, which the most ingenious malice can not torture into a criminal construction, is charged by the information rather as introductory to what is made to follow it than as libelous in itself. For the Attorney General, from this introductory passage in the first page, goes on at a leap to page thirteenth, and reads-almost without a stop, as if it immediately followed the other-this sentence: "What credit can we give to multiplied and accumulated charges, when we find that they originate from misrepresentation and falsehood?"

Your inquiry, therefore, is not confined to this, whether the defendant published those selected parts of it; and whether, looking at them as they are distorted by the information, they carry, in fair construction, the sense and meaning which the innuendoes put upon them; but whether the author of the entire work-I say the author, since, if he could defend himself, the publisher unquestionably canwhether the author wrote the volume which I hold in my hand, as a free, manly, bona fide disquisition of criminal charges against his fellowcitizen. Or whether the long, eloquent discussion of them, which fills so many pages, was a mere cloak and cover for the introduction of the supposed scandal imputed to the selected passages; the mind of the writer all along being intent on traducing the House of Commons, and not on fairly answering their charges against Mr. Hastings? This, gentlemen, is the principal matter for your consideration. And therefore, if, after you shall have taken the book itself into the chamber which will be provided for you, and shall have read the whole of it with impartial attention—if, after the performance of this duty, you can return here, and with clear con- From these two passages thus standing tosciences pronounce upon your oaths that the im-gether, without the intervenient matter which pression made upon you by these pages is, that occupies thirteen pages, one would imagine that the author wrote them with the wicked, sedi-instead of investigating the probability or imtions, and corrupt intentions charged by the in- probability of the guilt imputed to Mr. Hastings formation you have then my full permission to find the defendant guilty. But if, on the other hand, the general tenor of the composition shall impress you with respect for the author, and point him out to you as a man mistaken, perhaps, himself, but not seeking to deceive others-if every line of the work shall present to you an intelligent, animated mind, glowing with a Christian compassion toward a fellow-man, whom he believed to be innocent, and with a patriot zeal for the liberty of his country, which he considered as wounded through the sides of an oppressed fellow-citizen-if this shall be the im-charged before, but of those in the sequel of this pression on your consciences and understandings, when you are called upon to deliver your verdiet-then hear from me that you not only work private injustice, but break up the press of England, and surrender her rights and liberties forever, if you convict the defendant.

Gentlemen, to enable you to form a true judg

Charge made

passages, and omitting the intervening mat

ter.

instead of carefully examining the charges of the Commons, and the defense of them which had been delivered before them, or which was preparing for the Lords-the author had immediately, and in a moment after stating the mere fact of the impeachment, decided that the act of the Commons originated from misrepresentation and falsehood.

Gentlemen, in the same manner a vail is cast over all that is written in the next seven pages; for, knowing that the context would help to the true construction, not only of the passages

information, the Attorney General, aware that it would convince every man who read it that there was no intention in the author to calumniate the House of Commons, passes over, by another leap, to page twenty; and in the same manner, without drawing his breath, and as if it directly followed the two former sentences in the first and thirteenth pages, reads from page twentieth :

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ment of the meaning of this book and out by selecting of the intention of its author, and to An impeachment of error in judgment with expose the miserable juggle that is regard to the quantum of a fine, and for an inplayed off in the information, by the tention that never was executed and never combination of sentences which, in the work it-known to the offending party, characterizes a triself, having no bearing upon one another, I will bunal of inquisition rather than a Court of Parliament." 2 The principal parts selected by the Attorney General are specified and commented on by Mr. Er skine in a subsequent part of this speech.

From this passage, by another vault, he leaps over one-and-thirty pages more, to page fifty

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one, where he reads the following sentence, which he mainly relies on, and upon which I shall by-and-by trouble you with some observations: Thirteen of them passed in the House of Commons, not only without investigation, but without being read; and the votes were given without inquiry, argument, or conviction. A majority had determined to impeach; opposite parties met each other, and 'jostled in the dark, to perplex the political drama, and bring the hero to a tragic catastrophe.'

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From thence, deriving new vigor from every exertion, he makes his last grand stride over forty-four pages more, almost to the end of the book, charging a sentence in the ninety-fifth page.

convicted of er

ror.

So that out of a volume of one hundred and ten Any book might pages, the defendant is only charged in this way be with a few scattered fragments of sentences, picked out of three or four. Out of a work consisting of about two thousand five hundred and thirty lines, of manly, spirited eloquence, only forty or fifty lines are culled from different parts of it, and artfully put together, so as to rear up a libel, out of a false context, by a supposed connection of sentences with one another, which are not only entirely independent, but which, when compared with their antecedents, bear a totally different construction. In this manner, the greatest works upon government, the most excellent books of science, the sacred Scriptures themselves, might be distorted into libels, by forsaking the general context, and hanging a meaning upon selected parts. Thus, as in the text put by Algernon Sidney, "The fool hath said in his heart, there is no God," the Attorney General, on the principle of the present proceeding against this pamphlet, might indict the publisher of the Bible for blasphemously denying the existence of heaven, in printing, "There is no God," for these words alone, without the context, would be selected by the information, and the Bible, like this book, would be underscored to meet it. Nor could the defendant, in such a case, have any possible defense, unless the jury were permitted to see, by the book itself, that the verse, instead of denying the existence of the Divinity, only imputed that imagination to a fool.

considerations before taking up the book.

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the House in

Hastings.

The Commons of Great Britain, in Parliament assembled, had accused Mr. Hastings, (1) Character as Governor General of Bengal, of high and conduct of crimes and misdemeanors; and their impeaching Mr. jurisdiction, for that high porpose of national justice, was unquestionably competent. But it is proper you should know the nature of this inquisitorial capacity. The Commons, in voting an impeachment, may be compared to a grand jury finding a bill of indictment for the Crown. Neither the one nor the other can be supposed to proceed but upon the matter which is brought before them; neither of them can find guilt without accusation, nor the truth of accusation without evidence. When, therefore, we speak of the accuser," or "accusers," of a person indicted for any crime, although the grand jury are the accusers in form, by giving effect to the accusation, yet, in common parlance, we do not consider them as the responsible authors of the prosecution. If I were to write of a most wicked indictment, found against an innocent man, which was preparing for trial, nobody who read it would conceive I meant to stigmatize the grand jury that found the bill; but it would be inquired immediately, who was the prosecutor, and who were the witnesses on the back of it? In the same manner, I mean to contend, that if this book is read with only common attention, the whole scope of it will be discovered to be this: That, in the opinion of the author, Mr. Hastings had been accused of maladministration in India, from the heat and spleen of political divisions in Parliament, and not from any zeal for national honor or justice; that the impeachment did not originate from government, but from a faction banded against it, which, by misrepresentation and violence, had fastened it on an unwilling House of Commons; that, prepossessed with this sentiment (which, however unfounded, makes no part of the present business, since the publisher is not called before you for defaming individual members of the Commons, but for a contempt of the Commons as a body), the author pursues the charges, article by article; enters into a warm and animated vindication of Mr. Hastings, by regular answers to each of them; and that, as far as the mind and soul of a man can be visible, I might almost say embodied in his writings, his intention through

Gentlemen, having now gone through the At-out the whole volume appears to have been to Preliminary torney General's reading, the book shall presently come forward and speak for itself. But before I can venture to lay it before you, it is proper to call your attention to how matters stood at the time of its publication without which the author's meaning and intention can not possibly be understood.3

:

charge with injustice the private accusers of Mr. Hastings, and not the House of Commons as a body; which undoubtedly rather reluctantly gave way to, than heartily adopted the impeachment. This will be found to be the palpable scope of the book; and no man who can read English, and who, at the same time, will have the candor and common sense to take up his impressions from what is written in it, instead of bringing his description of the trial, and of the talent arrayed against his client in Westminster Hall.

3 One of the most admirable things in this defense was the introduction of this preliminary matter. Before comparing the book with the charges, Mr. Erskine here brings forward the character sustained by the Commons, and the error they committed in This distinction between the individual oppoallowing the charges against Hastings to be pub-nents of Mr. Hastings and the House to which they lished to the world. He thus shows the necessity of some defense on the part of the accused. He next awakens sympathy in his favor by a powerful

belonged, was one of the turning-points of the case, and was used by Mr. Erskine with great effect when he came to comment on the pamphlet.

own along with him to the reading of it, can pos- | dure the publication of their records. A prossibly understand it otherwise.

But it may be said, that admitting this to be the (2) The House scope and design of the author, what right had he to canvass the

provoked this attack by allow

against Hast

lished.

These things,

evidence, are

ecutor of an indictment would be attached for such a publication; and, upon the same principle, a defendant would be punished for anticipating the justice of his country, by the publication of ing the charges merits of an accusation upon the rec-his defense, the public being no party to it, until ings to be pub ords of the Commons, more espe- the tribunal appointed for its determination be cially while it was in the course of open for its decision. legal procedure? This, I confess, might have been a serious question, but the Commons, as prosecutors of this information, seem to have waived or forfeited their right to ask it. Before they sent the Attorney General into this place, to punish the publication of answers to their charges, they should have recollected that their own want of circumspection in the maintenance of their privileges, and in the protection of persons accused before them, had given to the pub-charges against Mr. Hastings, to which it is an lic the charges themselves, which should have been confined to their own journals. The course and practice of Parliament might warrant the printing of them for the use of their own members;

the jury.

Gentlemen, you have a right to take judicial notice of these matters, without the proof of them by witnesses. For though not in jurors may not only, without evi- properly before dence, found their verdicts on facts that are notorious, but upon what they know privately themselves, after revealing it upon oath to one another. Therefore, you are always to remember that this book was written when the

answer, were, to the knowledge of the Commons (for we can not presume our watchmen to have been asleep), publicly hawked about in every pamphlet, magazine, and newspaper in the kingYou well know with what a curious appetite these charges were devoured by the whole public, interesting as they were, not only from their importance, but from the merit of their composition; certainly not so intended by the honorable and excellent composer to oppress the accused, but because the commonest subjects swell into eloquence under the touch of his sublime genius. Thus, by the remissness of the Commons, who are now the prosecutors of this

but there the publication should have stop-dom. ped, and all further progress been resisted by authority. If they were resolved to consider answers to their charges as a contempt of their privileges, and to punish the publication of them by such severe prosecutions, it would have well become them to have begun first with those printers who, by publishing the charges themselves throughout the whole kingdom, or rather throughout the whole civilized world, were anticipating the passions and judgments of the pub-information, a subject of England, who was not lic against a subject of England upon his trial, so as to make the publication of answers to them not merely a privilege, but a debt and duty to humanity and justice. The Commons of Great Britain claimed and exercised the privileges of questioning the innocence of Mr. Hastings by their impeachment: but as, however questioned, it was still to be presumed and protected, until guilt was established by a judgment, he whom they had accused had an equal claim upon their justice, to guard him from prejudice and misrepresentation until the hour of trial.

Such a procedure con. trary to all ju dicial usage.

Had the Commons, therefore, by the exercise of their high, necessary, and legal privileges, kept the public aloof from all canvass of their proceedings, by an early punishment of printers, who, without reserve or secrecy, had sent out the charges into the world from a thousand presses in every form of publication, they would have then stood upon ground to-day from whence no argument of policy or justice could have removed them; because nothing can be more incompatible with either than appeals to the many upon subjects of judicature, which, by common consent, a few are appointed to determine, and which must be determined by facts and principles, which the multitude have neither leisure nor knowledge to investigate. But then, let it be remembered that it is for those who have the authority to accuse and punish, to set the example of, and to enforce this reserve, which is so necessary for the ends of justice. Courts of law, therefore, in England, never en

even charged with contumacious resistance to authority, much less a proclaimed outlaw, and therefore fully entitled to every protection which the customs and statutes of the kingdom hold out for the protection of British liberty, saw himself pierced with the arrows of thousands and ten thousands of libels.

Gentlemen, before I venture to lay the book before you, it must be yet further remembered (for the fact is equally notorious) that under these inauspicious circumstances the trial of Mr. Hastings at the bar of the Lords had actually commenced long before its publication.

There the most august and striking spectacle was daily exhibited which the world (3.) Description ever witnessed. A vast stage of jus- of the trial. tice was erected, awful from its high authority, splendid from its illustrious dignity, venerable from the learning and wisdom of its judges, captivating and affecting from the mighty concourse of all ranks and conditions which daily flocked into it, as into a theater of pleasure. There, when the whole public mind was at once awed and softened to the impression of every human affection, there appeared, day after day, one after another, men of the most powerful and exalted talents, eclipsing by their accusing eloquence the most boasted harangues of antiquity; rousing the pride of national resentment by the boldest invectives against broken faith and violated treaties, and shaking the bosom with alternate pity and horror by the most glowing pictures of insulted nature and humanity; ever animated and ener

getic, from the love of fame, which is the inhe- | when the charges against Mr. Hastings were, by rent passion of genius; firm and indefatigable, the implied consent of the Commons, Question for from a strong prepossession of the justice of their

cause.

in view of

in every hand, and on every table-the jury to de when, by their managers, the light- these facts. ning of eloquence was incessantly consuming him, and flashing in the eyes of the public-when every man was with perfect impunity saying, and writing, and publishing, just what he pleased of the supposed plunderer and devastator of nations would it have been criminal in Mr. Hastings himself to have reminded the public that he was a native of this free land, entitled to the common protection of her justice, and that he had a defense, in his turn, to offer to them, the outlines of which he implored them, in the mean time, to receive as an antidote to the unlimited and unpun

Gentlemen, when the author sat down to write the book now before you, all this terrible, unceasing, exhaustless artillery of warm zeal, matchless vigor of understanding, consuming and devouring eloquence, united with the highest dignity, was daily, and without prospect of conclusion, pouring forth upon one private unprotected man, who was bound to hear it, in the face of the whole people of England, with reverential submission and silence. I do not complain of this, as I did of the publication of the charges, because it is what the law allowed and sanctioned in the course of a public trial. But when it is re-ished poison in circulation against him? THIS membered that we are not angels, but weak, fal- is, without color or exaggeration, the true queslible men, and that even the noble judges of that tion you are to decide. For I assert, without high tribunal are clothed beneath their ermines the hazard of contradiction, that if Mr. Hastings with the common infirmities of man's nature, it himself could have stood justified or excused in will bring us all to a proper temper for consider- your eyes for publishing this volume in his own ing the book itself, which will in a few moments defense, the author, if he wrote it bona fide to debe laid before you. But first, let me once more fend him, must stand equally excused and justiremind you, that it was under all these circum-fied; and if the author be justified, the publisher stances, and amid the blaze of passion and prejudice, which the scene I have been endeavoring faintly to describe to you might be supposed likely to produce, that the author, whose name I will now give to you, sat down to compose the book which is prosecuted to-day as a libel.

can not be criminal, unless you have evidence that it was published by him, with a different spirit and intention from those in which it was written. The question, therefore, is correctly what I just now stated it to be: Could Mr. Hastings have been condemned to infamy for writing this book?

Gentlemen, I tremble with indignation, to be driven to put such a question in En- Ground of gland. Shall it be endured, that a sub- the defense. ject of this country (instead of being arraigned and tried for some single act in her ordinary courts, where the accusation, as soon, at least, as it is made public, is followed within a few hours by the decision) may be impeached by the Com

The history of it is very short and natural. The Rev. Mr. Logan, minister of the Gospel Origin of the at Leith, in Scotland, a clergyman of the pamphlet. purest morals, and, as you will see byand-by, of very superior talents, well acquainted with the human character, and knowing the difficulty of bringing back public opinion after it is settled on any subject, took a warm, unbought, unsolicited interest in the situation of Mr. Hast-mons for the transactions of twenty years-that ings, and determined, if possible, to arrest and suspend the public judgment concerning him. He felt for the situation of a fellow-citizen exposed to a trial which, whether right or wrong, is undoubtedly a severe one—a trial certainly not confined to a few criminal acts like those we are accustomed to, but comprehending the transactions of a whole life, and the complicated policies of numerous and distant nations-a trial which had neither visible limits to its duration," bounds to its expense, nor circumscribed compass for the grasp of memory or understanding-a trial which had, therefore, broke loose from the common form of decision, and had become the universal topic of discussion in the world, superseding not only every other grave pursuit, but every fashionable dissipation.

Gentlemen, the question you have, therefore, to try upon all this matter is extremely simple. It is neither more nor less than this: At a time

The trial began 13th February, 1788, and was protracted until 17th April, 1795 (occupying one hundred and forty-eight days), when Mr. Hastings was acquitted by a large majority on every separate article charged against them. The costs of the defense amounted to £76,080.

the accusation shall spread as wide as the region of letters-that the accused shall stand, day after day, and year after year, as a spectacle before the public, which shall be kept in a perpetual state of inflammation against him; yet that he shall not, without the severest penalties, be permitted to submit any thing to the judgment of mankind in his defense? If this be law (which it is for you to-day to decide), such a man has NO TRIAL! That great hall, built by our fathers for English justice, is no longer a court, but an altar; and an Englishman, instead of being judged in by GOD AND HIS COUNTRY, IS A VICTIM AND A SACRIFICE !6

You will carefully remember that I am not

In the next paragraph Mr. Erskine shows that peculiar caution which he always maintained in his boldest flights. He instantly comes back to the rights of the House, and the propriety with which the managers had conducted. He thus took care to impress his hearers, in his most impassioned passages, with the feeling that all he said was in the exercise of the severest judgment—that he was never borne away by mere emotion in his most fervent appeals. This gave great weight to his more glowing passages.

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